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Scribblenauts Dev/Pub Sued for Copyright Infringement

by Zack Kaplan - May 3, 2013, 6:57 pm EDT
Total comments: 38 Source: Los Angeles Intellectual Property Trademark Attorney Blog, http://www.iptrademarkattorney.com/2013/04/los-ang...

Keyboard Cat and Nyan Cat are now relevant again.

Warner Bros. and 5th Cell, the companies behind Scribblenauts, are being sued for their use of two popular internet cat memes in the Scribblenauts games.

Keyboard Cat and Nyan Cat are the two memes in the Scribblenauts games that are the basis for the copyright infringement suit. The creator of Keyboard Cat, Charles Schmidt registered the video that features his now deceased cat Fatso with US Copyright Office in 2010 and has trademarks pending at the US Patent & Trademark Office. Likewise, Nyan Cat creator Christopher Orlando Torres registered a copyright on the Nyan Cat animated GIF in 2011 and has a trademark application pending.

The Scribblenauts series used representations of both cats without permission, starting with Keyboard Cat in the original 2009 DS game Scribblenauts. The most recent Scribblenauts game, Unlimited, contains both memes and is available on the 3DS and Wii U.

King, Holmes, Paterno, and Berliner, LLP are representing the two cats in a combined lawsuit seeking statutory damages, willful infringement enhancements, and attorney fees. However, Keyboard Cat may not be fully eligible due to its late copyright registration. The plaintiffs seek a sales injunction of Scribblenauts games until the suit is resolved.

The case is Schmidt, et al. v. Warner Bros. Entertainment, Inc., et al., CV13-02824-JFW.

Talkback

pokepal148Spencer Johnson, Contributing WriterMay 03, 2013

and you can sue half of the internet (us included) with those claims

TJ SpykeMay 03, 2013

As I mentioned on GameSpot, these lawsuits are baseless. First, they never bothered to copyright them until after they had been used in Scribblenauts (and by that time, both had been used all over the Internet). Hell, the Nyan Cat meme didn't even become popular until someone else took it, put it on YouTube and added music.

You don't see Toei Animation suing people everytime someone makes a "It's over 9000!" pic, for example. These two will never win. Best case scenario for them, they get a tiny out of court settlement. Worst case, they lose the lawsuit and have to compensate Warner Bros. and 5th Cell. They need to just shut up and watch the South Park episode about every other loser who creates a Internet meme and thinks they are entitled to money.

About the article, why do you seem to imply Nyan Cat would be entitled to more money than Keyboard Cat? The guy who created Keyboard Cat copyrighted it sooner than the guy who copyright Nyan Cat.

Because Nyan Cat was only featured in the most recent game, which came out after the copyright was filed, unlike what you just claimed.

UncleBobRichard Cook, Guest ContributorMay 03, 2013

I don't see how "Keyboard Cat" is something that can be copyrighted.  It's a cat, playing a keyboard.  The Scribblenauts version looks nothing like the cat in the video.

Nyan Cat... yeah - it *is* a unique work of art.  Though it'd be interesting if Kellogg's was to sue for the use of the Pop Tart. ;)

AVMay 03, 2013

The copyright laws in America are incredibly easy to abuse.
So I actually think they will win .

this American life on NPR did a great investigation on Pantent trolls
The laws recently have changed but not nearly enough.

azekeMay 03, 2013

Was that the reason for delay of Scribblenauts Wii U game in Europe?

martyMay 03, 2013

it seems entirely reasonable to attempt protect something you created, regardless of how dumb or trivial it might seem to others.  If the people think they have exclusive rights to profit off of something, they're free to sue and a court will sort it out.



jvgsjeffMay 04, 2013

To me, it's mind-boggling that they didn't think to acquire permission to use it before they put it into a game. Just because it's on the internet doesn't mean you're allowed to take it and make money off of it. You'd think a big company like Warner Bros. would know that. People making memes and passing them around is one thing, but this was used in a commercial, for-profit video game. Don't you think WB would do the same if another company used WB characters in their video games?

UncleBobRichard Cook, Guest ContributorMay 04, 2013

Warner Bros. probably knew nothing about them being in the game.  Likely, some random developer (who is now going to be out of a job), threw them in there as a joke.  I seriously doubt a Warner Bros. rep went through the game and tested every possible phrase.

ejamerMay 04, 2013

One thing I don't understand is what financial damage has been done. Seriously: unless these memes are showing up all over the place, what value do they have? Even when they are showing up all over the place, their value is very slight in my opinion. Also, what actions have ever been taken by the copyright owners in the past to protect or promote the memes?


Copyright owners have every right to protect their work... but (totally my personally opinion) it seems like having the memes included in Scribblenauts has enhanced the value of the works, if anything.  It's also hard to argue that adding the memes has enhanced the value or attractiveness of Scribblenauts in a meaningful way.


5th Cell never should have included them without permission.  Personally, I still hope that this gets thrown out of court as a waste of time for all involved.

pokepal148Spencer Johnson, Contributing WriterMay 04, 2013

Quote from: Mr.

The copyright laws in America are incredibly easy to abuse.
this American life on NPR did a great investigation on Pantent trolls
The laws recently have changed but not nearly enough.

MICROSOFT is collecting royalties from factories who MANUFACTURE android phones, I think we are well beyond broken...

TJ SpykeMay 04, 2013

Quote from: pokepal148

Quote from: Mr.

The copyright laws in America are incredibly easy to abuse.
this American life on NPR did a great investigation on Pantent trolls
The laws recently have changed but not nearly enough.

MICROSOFT is collecting royalties from factories who MANUFACTURE android phones, I think we are well beyond broken...

Because Microsoft says they are violating patents that they own, and the companies would rather pay royalties than fight it in court.

Copyright laws aren't really a problem. Sure, they should probably expire sooner, but for the most part they're fine. Patents are a clusterfuck, though, and need a complete overhaul.

pokepal148Spencer Johnson, Contributing WriterMay 04, 2013

Quote from: TJ

Quote from: pokepal148

Quote from: Mr.

The copyright laws in America are incredibly easy to abuse.
this American life on NPR did a great investigation on Pantent trolls
The laws recently have changed but not nearly enough.

MICROSOFT is collecting royalties from factories who MANUFACTURE android phones, I think we are well beyond broken...

Because Microsoft says they are violating patents that they own, and the companies would rather pay royalties than fight it in court.

Foxxcon is nothing more then a middleman, they manufacture the phones and likely flash them with whatever software was given to them in this case. Why should they be sued over these things when they are basically following directions from somebody else whom microsoft already gets royalties from...

TJ SpykeMay 04, 2013

Because Foxconn is the manufacturer of the devices, meaning they are violating the patents too. It's like if a video game violates your copyright, you sue the developer and the publisher.

pokepal148Spencer Johnson, Contributing WriterMay 04, 2013

Quote from: TJ

Because Foxconn is the manufacturer of the devices, meaning they are violating the patents too. It's like if a video game violates your copyright, you sue the developer and the publisher.

should they sue At&t and the other carriers as well? Who makes the accessories? Should they sue otterbox for making cases for the infringing products? Should they go after Wal-Mart for selling these phones?

and in the long run who do you think they will wind up being forced to make up for the lost profit these companies give to Microsoft
Answer: WE THE CONSUMER!!!

TJ SpykeMay 04, 2013

The carriers don't make the phones. Nor do the accessory makers, or the retailers. The people violating the patents are the manufacturers of the phone and the ones who design them, that is pretty obvious. Stop making facetious arguments. And you are blaming Microsoft? Blame the companies that violated Microsoft's patents.

pokepal148Spencer Johnson, Contributing WriterMay 04, 2013

I am not ruining another thread with our bickering... if you wish to continue this I am putting my rebuttal elsewhere...

UncleBobRichard Cook, Guest ContributorMay 04, 2013

Quote from: pokepal148

I am not ruining another thread with our bickering...

Too late.

pokepal148Spencer Johnson, Contributing WriterMay 04, 2013

Quote from: UncleBob

Quote from: pokepal148

I am not ruining another thread with our bickering...

Too late.

eh true... i would rather not kick a dead horse though

MataataMay 05, 2013

Personally, I'd be honored to have my creation become so popular and have it put into a game.

tendoboy1984May 05, 2013

If those Android patents are all software related, then Microsoft should go after the source, which is Google, not the phone manufacturers.

pokepal148Spencer Johnson, Contributing WriterMay 05, 2013

Quote from: tendoboy1984

If those Android patents are all software related, then Microsoft should go after the source, which is Google, not the phone manufacturers.

and they are and i moved this discussion elsewhere...

CericMay 06, 2013

Things like this is where Patent law should have a Squatter clause. Something that if you do not recognize the Patent Violation during the first X years of something or after common availability then you have missed your window of opportunity.

I find it amusing that most posters here are taking Warner Bros. side on this.  Keyboard cat and Nyan cat, as silly as they are, we're interesting and noteworthy enough to be included in the Scribblenauts game, and the content creators weren't solicited for permission, so they're suing WB because of it. 

How ridiculous is it if it were my little pony or Garfield being used without permission?  I think people are being flippant about this because they're "just Internet memes".

TJ SpykeMay 06, 2013

Quote from: lolmonade

I find it amusing that most posters here are taking Warner Bros. side on this.  Keyboard cat and Nyan cat, as silly as they are, we're interesting and noteworthy enough to be included in the Scribblenauts game, and the content creators weren't solicited for permission, so they're suing WB because of it. 

How ridiculous is it if it were my little pony or Garfield being used without permission?  I think people are being flippant about this because they're "just Internet memes".

Here's the thing, the creater of Keyboard Cat didn't even copyright it until AFTER it had been used in the first game.

As for Nylan Cat, it didn't become popular until someone else took it and put it on YouTube with music. The original meme was not popular before then.

There is also the fact that neither one of these guys cared when thousands of people and websites used it, they only became interested when somebody with money used it. Also, you don't see Toei Animation or Funimation suing over people using Vegeta and the "It's over 9000" line. They are suing because they want money, plain and simple. They never would have gotten money from people on messageboards using them, but they think they can get money from Warner Bros. using it. And why would the Keyboard Cat guy wait 4 YEARS to sue?

ejamerMay 06, 2013


Including them as small Easter eggs in the Scribblenauts game was an homage to something the developers found cute and funny, not an attempt to profit off the work of others. After all, these are stupid internet memes that are often used freely with nary an attempt made to prevent or limit usage. I don't think the developer or publisher should be penalized for paying tribute to a meme they enjoy - although I do agree they should have sought permission before adding them.

Also, I'm simply not sold on either meme having any meaningful value. The lawsuits feel like a cheap money grab that could/should have been handled in a different manner if the creators actually cared about their works instead of a quick payday.

pokepal148Spencer Johnson, Contributing WriterMay 06, 2013

Quote from: TJ

As for Nylon Cat...

i fixed a typo... you're welcome...
There's a cat made of nylon involved???

TJ SpykeMay 06, 2013

LOL, stupid typos. I was typing so fast I didn't pay attention.

pokepal148Spencer Johnson, Contributing WriterMay 06, 2013

also technically it would be 3 and a half years...

Quote from: TJ

Quote from: lolmonade

I find it amusing that most posters here are taking Warner Bros. side on this.  Keyboard cat and Nyan cat, as silly as they are, we're interesting and noteworthy enough to be included in the Scribblenauts game, and the content creators weren't solicited for permission, so they're suing WB because of it. 

How ridiculous is it if it were my little pony or Garfield being used without permission?  I think people are being flippant about this because they're "just Internet memes".

Here's the thing, the creater of Keyboard Cat didn't even copyright it until AFTER it had been used in the first game.

As for Nylan Cat, it didn't become popular until someone else took it and put it on YouTube with music. The original meme was not popular before then.

There is also the fact that neither one of these guys cared when thousands of people and websites used it, they only became interested when somebody with money used it. Also, you don't see Toei Animation or Funimation suing over people using Vegeta and the "It's over 9000" line. They are suing because they want money, plain and simple. They never would have gotten money from people on messageboards using them, but they think they can get money from Warner Bros. using it. And why would the Keyboard Cat guy wait 4 YEARS to sue?

I won't argue the shadiness of not copyrighting it until after the game used it, I don't know enough about that to make a counterpoint.

Message boards don't typically use nyan cat and keyboard cat for profit.  That would be protected under fair use.  The line is crossed when these characters/icons are used in a product being sold.  I'd argue Toei Animation would be within their rights to sue individuals/groups that used Vegeta/over9000 for profit too, given that it uses a recognizable character from one of their most well-known shows.

I don't disagree that they're motivated only by profit, but there is a level of negligence that happened here when the creators of Scribblenauts put those two things in the game, and no one thought to themselves "is there any legal ramification that could occur by us using these recognizable internet icons without getting permission?". 

CericMay 06, 2013

Next Valve is going to sue NASA...

martyMay 06, 2013

just a little information about copyright:


as soon as you create something 'original,' you own the copyright.  You can file your copyrighted creation with the government, but it's not necessary (and it doesn't grant you any extra protection).  Writers/Comic book artists/programmers used to mail themselves copies of their work so the USPS would put an legal date on an unopened letter or package containing the work because it was cheaper than filing anything with the US copyright office.  Sealing envelopes with a notary's seal on it was another common, cheap method of legally obtaining an official date on materials.  Email things to yourself provides about the same amount of protection.


5th Cell/WB wouldn't be dumb enough to claim that they invented keyboard cat, regardless of when the copyright was filed, since keyboard cat as a meme predates their publication of the property(or wether there is no copyright, which is what they would argue if they wanted to drag the suit out--they're probably not dumb enough to say that they created keyboard cat).  Keyboard/Nyan Cats may not be an 'original' enough ideas for them to warrant copyright protection, or the works might be copyrighted but scribblenaughts might be able to legally use them through "fair use" (another hugely legal grey area) , though--which a lawsuit may or may not provide a ruling on.


copyright/patent law is a fucking mess.  You're only protected for as much as you have the means to defend your claim in court, which means that it just becomes a matter of who has more money to waste on lawyers.

TJ SpykeMay 07, 2013

Actually marty, there are advanatges to filing a copyright with the USPTO:

1)You establish a public record of your work
2)If you intend to bring a lawsuit over your work, you need to have copyright registration if its a US based work (meaning you can't sue someone for copyright violation unless you have registered your work with the USPTO)
3)If you copyright it within 3 months of publishing your work, you can also get statutory damages and attorney's fees if you sue for copyright infringement (otherwise, all you can get are actual damages and profit loss you suffered. Since Keyboard Cat was copyright long after that, he probably would get nothing since I have not seen any indication he makes any money from the meme, so he didn't lose any money or profit from the games using it).
4)It allows you to register your work with the US Customs Office and preventing infringing works from being imported into the US

martyMay 07, 2013

Quote from: TJ

Actually marty, there are advanatges to filing a copyright with the USPTO:

none of those  = extra protection for your copyrighted works.
none of those = necessary to hold copyright.


there are advantages to having filed copyright with the gov if someone does (what you believe to be) infringe on your copyright but it's not necessary--i.e. you don't lose your copyrights by not filing with the gov.

Quote from: marty

as soon as you create something 'original,' you own the copyright.  You can file your copyrighted creation with the government, but it's not necessary (and it doesn't grant you any extra protection).  Writers/Comic book artists/programmers used to mail themselves copies of their work so the USPS would put an legal date on an unopened letter or package containing the work because it was cheaper than filing anything with the US copyright office.  Sealing envelopes with a notary's seal on it was another common, cheap method of legally obtaining an official date on materials.  Email things to yourself provides about the same amount of protection.

While it's true that you automatically gain copyright, just mailing something to yourself (though it's touted as a popular cost-effective method) doesn't provide any legal proof of date in the US.

martyMay 07, 2013

Quote from: MegaByte

Quote from: marty

as soon as you create something 'original,' you own the copyright.  You can file your copyrighted creation with the government, but it's not necessary (and it doesn't grant you any extra protection).  Writers/Comic book artists/programmers used to mail themselves copies of their work so the USPS would put an legal date on an unopened letter or package containing the work because it was cheaper than filing anything with the US copyright office.  Sealing envelopes with a notary's seal on it was another common, cheap method of legally obtaining an official date on materials.  Email things to yourself provides about the same amount of protection.

While it's true that you automatically gain copyright, just mailing something to yourself (though it's touted as a popular cost-effective method) doesn't provide any legal proof of date in the US.

Funny.  I guess I knew people mailing themselves packages containing their own works for no reason (the same comic book writers/artist also filed their copyrighted material, too).

TJ SpykeMay 18, 2013

Quote from: marty

none of those  = extra protection for your copyrighted works.

Well, my post showed there IS extra protection provided. Look at the last point, if you register it with the USPTO, you can block people companies from importing infringing works. That means if you have a movie but don't register it, a company could make a pirated copy and import it and you can't stop them.

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